KONINKLIJKE PHILIPS N.V.

Patent Trials and Appeals BoardMay 3, 2021

2020005144 (P.T.A.B. May. 3, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/102,566 06/08/2016 Shlomo GOTMAN 2013P01529WOUS 1625 24737 7590 05/03/2021 PHILIPS INTELLECTUAL PROPERTY & STANDARDS 465 Columbus Avenue Suite 340 Valhalla, NY 10595 EXAMINER PENG, BO JOSEPH ART UNIT PAPER NUMBER 3793 NOTIFICATION DATE DELIVERY MODE 05/03/2021 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): katelyn.mulroy@philips.com marianne.fox@philips.com patti.demichele@Philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SHLOMO GOTMAN Appeal 2020-005144 Application 15/102,566 Technology Center 3700 Before MICHAEL L. HOELTER, JEREMY M. PLENZLER, and LEE L. STEPINA, Administrative Patent Judges. STEPINA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–3 and 5–9.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Koninklijke Philips N.V. as the real party in interest. Appeal Br. 3. 2 Claim 4 is cancelled, and claims 10–20 are withdrawn. Appeal Br. 24–28. Appeal 2020-005144 Application 15/102,566 2 CLAIMED SUBJECT MATTER The claims are directed to a system for electromagnetic tracking via magnetic trackers for respiratory monitoring. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An electromagnetic tracking system for use with an imaging system, comprising: a first tracker attached to a human or animal subject to be imaged by the imaging system, wherein the first tracker comprises an emitter to emit a magnetic field; a second tracker attached to the subject, wherein the second tracker comprises a first receiver to measure the magnetic field; and at least one processor configured to determine a position of the second tracker relative to the first tracker based on the magnetic field measured by the first receiver and generate a respiratory signal based on the position of the second tracker relative to the first tracker, wherein the position of the second tracker relative to the first tracker changes during a plurality of respiratory states of the subject. Appeal Br. 24 (Claims App.). REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Shmarak US 2009/0182224 A1 July 16, 2009 Holsing US 2012/0059220 A1 Mar. 8, 2012 Appeal 2020-005144 Application 15/102,566 3 REJECTIONS3 Claim 1 is rejected under 35 U.S.C. § 102(a)(1) as anticipated by, or, in the alternative, under 35 U.S.C. § 103 as unpatentable over, Shmarak. Final Act. 4. Claims 2, 3, 5–9 are rejected under 35 U.S.C. § 103 as unpatentable over Shmarak, alone, or in combination with Holsing.4 Final Act. 5. OPINION Rejection I—Shmarak Claim 1 The Examiner finds that Shmarak teaches all of the elements recited by claim 1, including “a first tracker attached to a human or animal subject” and “a second tracker attached to the subject.” Final Act. 4–5 (citing Shmarak ¶¶ 8, 13, 32, 35, 59, 61, 62, 66–69, Fig. 1). This finding is based, in part, on interpreting the limitation that the recited trackers be “attached” to the subject as merely a recitation of intended use. See id. at 4. The Examiner finds “any[ ]one of [Shmarak’s sensors 120] is capable of attaching to a human subject,” thus meeting the “attached” requirement. Id. As an alternative, the Examiner determines that it would have been obvious “to use additional reference sensor[s] to attach . . . externally to the body of the patient to monitor breathing patterns and the like . . . to be imaged by the imaging system.” Id. 3 The Examiner withdrew a rejection of claims 1–3 and 5–9 as indefinite. See Final Act. 2; Ans. 3. 4 For claims 2, 3, 5–8, the Examiner determines that the claimed subject matter would have been obvious over Shmarak alone, or in combination with Holsing, but the rejection of claim 9 requires the teachings of Holsing. See Final Act. 5–10; Ans. 17–21. Appeal 2020-005144 Application 15/102,566 4 Appellant sets forth a series of arguments opposing various aspects of the Examiner’s rejection, and, specifically addressing the requirement in claim 1 that the trackers be “attached,” Appellant states the claim limitation is not just intended use of being attached to the subject because the trackers are used to determine a position of the second tracker relative to the first tracker based on the magnetic field measured by the first receiver and generate a respiratory signal based on the position of the second tracker relative to the first tracker. Appeal Br. 10 (emphasis omitted). In response, the Examiner states, “[t]he attachment of the first, 2nd, etc., tracker onto the ‘subjects’ are intended use because Appellant cannot claim to possess a human parts or the like in the apparatus claims.” Ans. 3. In reply, Appellant faults the Examiner for not citing case law or the Manual of Patent Examining Procedure (“MPEP”) in support of the determination that Appellant cannot “claim to possess human parts.” Reply Br. 3. Further, Appellant contends “there is no rule that human parts or the like cannot be claimed in an apparatus claim.”5 Id. For the reasons discussed below, we sustain the Examiner’s rejection of claim 1 as unpatentable over Shmarak based on the determination that it would have been obvious to use additional reference sensors attached externally to the body. In light of this affirmance based on the obviousness 5 The Examiner did not issue a rejection of claim 1 as being directed to patent-ineligible subject matter. Nonetheless, we note that section 33(a) of the America Invents Act states, “[n]otwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.” The Leahy-Smith America Invents Act (AIA), Pub. L. 112-29, sec. 33(a), 125 Stat. 284 (Sept. 16, 2011); see also MPEP § 2105 (9th Ed., Rev. 10. 2019, June 2020). Appeal 2020-005144 Application 15/102,566 5 of the claimed subject matter, we do not reach the issue of anticipation and the related claim interpretation issue, namely, whether claim 1 requires a system in which both trackers are attached to a human body or one merely having the capability for both trackers to attach to a human body. Appellant does not contest the Examiner’s reasoning in determining that it would have been obvious to a person of ordinary skill in the art to attach additional reference sensors to a patient’s body. See Final Act. 4–5; Appeal Br. 9–14. In any event, the Examiner’s reasoning is supported by rational underpinnings. See Shmarak ¶¶ 34–36. Appellant argues the Examiner erred because “sensors 1201, 1202, 1203, and 1204 are all being read by, or reading from, the Medical Positioning System (MPS) 102.” Appeal Br. 10 (citing Shmarak ¶¶ 29, 30, Fig. 1) (emphasis omitted). Therefore, according to Appellant, “the plurality of sensors 1201, 1202, 1203, and 1204 . . . do not: comprise a first receiver to measure the magnetic field from one of the other sensors,” and “there is no: processor configured to determine a position of the second tracker relative to the first tracker based on the magnetic field measured by the first receiver and generate a respiratory signal based on the position of the second tracker relative to the first tracker.” Id. at 10–11 (emphasis omitted). Specifically, Appellant asserts, “the sensors of Shmarak do not transmit and receive to/from each other.” Id. at 11. In response, the Examiner quotes portions of paragraphs 31, 32, 34, and 43 of Shmarak, and highlights the fact that each of Shmarak’s MPS sensors 1201, 1202, 1203, and 1204 may be an electromagnetic transducer that is capable both of transmitting an electromagnetic field and of detecting such a field. Ans. 5–7. The Examiner further finds Shmarak discloses that its reference electromagnetic transducer may be one of MPS sensors 1201, 1202, Appeal 2020-005144 Application 15/102,566 6 1203, and 1204. Id. at 6. Further, the Examiner finds Shmarak’s reference electromagnetic transducer transmits a signal that is detected by members of the group of sensors 1201, 1202, 1203, and 1204. Id. The Examiner cites paragraph 59 of Shmarak in support of the finding that Shmarak generates a respiratory signal based on the position of the relative position of the sensors. Id. at 9. In reply, Appellant argues that in Shmarak, “MPS sensors 1201, 1202, 1203 and 1204 detect magnetic fields from MPS 102, but none of the MPS sensors 1201, 1202, 1203 and 1204 detect any magnetic fields from one of the other MPS sensors,” and “[t]here is nothing in Shmarak that suggests that the MPS sensors 1201, 1202, 1203 and 1204 detect any magnetic fields from the other MPS sensors.” Reply Br. 5 (emphasis omitted). The portions of Shmarak cited by the Examiner adequately support the finding that Shmarak, indeed, discloses that its plurality of sensors 1201, 1202, 1203, and 1204 include a first receiver to measure the magnetic field from one of the other sensors. For example, paragraph 32 of Shmarak states “each of MPS sensors 1201, 1202, 1203, and 1204 may be an electromagnetic transducer, capable of both transmitting an electromagnetic field and detecting an electromagnetic field.” Bolding omitted. This paragraph further states, “MPS 102 contains at least one reference electromagnetic transducer (not shown) which is placed at a certain reference location. The reference electromagnetic transducer may be one of MPS sensors 1201, 1202, 1203, and 1204.” Bolding omitted. Paragraph 32 further explains, “[t]he reference transducer then transmits predetermined electromagnetic signals in the form of electromagnetic fields, which are detected by MPS sensors 1201, 1202, 1203, and 1204, respectively.” Bolding omitted, italicization added. Shmarak also disclose that this arrangement may operate in the reverse, Appeal 2020-005144 Application 15/102,566 7 “such that predetermined electromagnetic signals are transmitted by MPS sensors 1201, 1202, 1203, and 1204, respectively, and are detected by the reference transducer.” Id. (bolding omitted). Thus, one of the sensors 120X transmits a signal received by other members of the 120X group. Additionally, Shmarak states, “[t]he MPS processor processes the detected electromagnetic signals, and obtains an indication of the three- dimensional position of MPS sensors 1201, 1202, 1203, and 1204.” Shmarak ¶ 32. Thus, a preponderance of the evidence supports the Examiner’s finding that Shmarak discloses at least one processor configured to determine a position of the second tracker relative to the first tracker based on the magnetic field measured by the first receiver. Appellant’s contention that “the coordinate system normalization in Shmarak is completely irrelevant to the above recited features” (Appeal Br. 12 (citing Shmarak ¶¶ 8, 35)) does not address paragraph 32 of Shmarak. Further, Appellant’s contention on this point is merely conclusory and does not identify any error in the Examiner’s findings of fact. As for generation of a respiratory signal, paragraph 59 of Shmarak states, “[r]econstruction of the respiratory trajectory may be based solely on coordinate readings obtained from the external reference sensors (i.e., MPS sensors 1203 or 1204).” Bolding omitted. Further, Shmarak states, “[i]t is noted that an additional reference sensor (or plurality thereof) may be attached (i.e., externally or internally) to the body of the patient, to monitor breathing patterns and the like,” and “[t]his sensor functions as a confirmation mechanism to provide support data regarding respiratory motion, and more accurately determine periodic motion frequencies relating to respiratory motion.” Id.; see also id. ¶¶ 37, 64–69. Appellant’s contention that “it is clear that the additional reference sensor in Shmarak is Appeal 2020-005144 Application 15/102,566 8 neither equivalent to nor similar to ‘at least one processor configured to . . . generate a respiratory signal based on the position of the second tracker relative to the first tracker’ as recited in Appellant’s claim 1” (Appeal Br. 13) does not apprise us of Examiner error. Appellant next argues “[t]he portions of Shmarak ([0013], [0032], [0061], [0062] and [0066]-[0069]), as relied upon in the Final Office Action, contain a large number of elements, but it’s not clear how those elements are relevant to claimed feature recited in Appellant’s claim 1.” Appeal Br. 14. This argument is unavailing because the basis in Shmarak for the rejection of claim 1 is sufficiently clear, and, therefore, the Examiner adequately set forth a prima facie case of unpatentability, citing specific paragraphs in Shmarak. In this regard, Appellant’s contention that the rejection is unclear makes a general allegation that the rejection is deficient without identifying any particular claim element the Examiner failed to map to the disclosure of Shmarak. Rejection II—Shmarak and Holsing Claims 2 and 3 Appellant does not make arguments for the patentability of claims 2 and 3 aside from those discussed above regarding claim 1. See Appeal Br. 14. Accordingly, for the same reasons, we sustain the rejection of claims 2 and 3 as unpatentable over Shmarak and Holsing. Claim 5 Claim 5 depends from claim 1 and recites: a third tracker attached to the subject, wherein the third tracker comprises a second receiver to measure the magnetic field; wherein the at least one processor is further configured to determine a position of the third tracker relative to the first Appeal 2020-005144 Application 15/102,566 9 tracker based on the magnetic field measured by the second receiver and generate the respiratory signal based on the position of the third tracker relative to the first tracker; and wherein the position of the third tracker relative to the first tracker changes during the plurality of respiratory states of the subject. Appeal Br. 24 (Claims App.). The Examiner finds Shmarak discloses the use of additional MPS sensors to assist with coordinate normalization. Final Act. 6 (citing Shmarak ¶ 36). The Examiner reasons that, based on Shmarak alone, it would have been obvious to implement a third tracker attached to the subject and configured to perform as recited in claim 5 “to provide more accurate positional data.” Id. at 7 (citing Shmarak ¶¶ 13, 32). The Examiner also finds Holsing teaches a third tracker attached to the subject, and the third tracker includes a second receiver to measure the magnetic field and a processor configured to perform the functional limitations set forth in claim 5. Id. at 7 (citing Holsing ¶ 36, Figs. 2, 4, 6). The Examiner concludes that it would have been obvious to modify Shmarak’s system to include the additional tracker recited in claim 5 “to provide more accurate positional data.” Id. at 8. Under the heading “Argument 1,” Appellant asserts that the statements made in support of the patentability of claim 1 also apply to the patentability of claim 5. See Appeal Br. 15. As Appellant does not identify Examiner error in the rejection of claim 1, Appellant’s assertion fails to identify Examiner error with respect to claim 5. Under the heading “Argument 2,” Appellant states that the Examiner’s rejection is unclear and argues: Appeal 2020-005144 Application 15/102,566 10 Although Holsing [0036] mentions “electromagnetic coil sensor,” Holsing does not mention the features recited in Appellant’s claim 5, because “electromagnetic coil sensor” in Holsing does not relate to “to measure the magnetic field” or “based on the magnetic field measured by the second receiver” that are recited in Appellant’s claim 5. Also, as Holsing mentions only one tracker 20, Holsing does not mention any additional tracker. Appeal Br. 17. In response, in support of the rejection based on Shmarak alone, the Examiner reiterates that Shmarak teaches its MPS 102 may include additional sensors similar to 1203 and 1204. Ans. 14 (citing Shmarak ¶ 36) see also Shmarak ¶ 59. The Examiner goes on to map portions of paragraphs 30–32, 34, and 36 to elements recited in claim 5. Id. at 14–15. As to the rejection of claim 5 based on the teachings of Shmarak combined with those of Holsing, the Examiner states: Fig. 2 and with its teaching in para 0076, clearly teach at least four elements 24s. Holsing in para 0076 teaches: two or more localization elements 24 . . . The localization device 34 can be, for example, an analog to digital converter that measures voltages induced onto localization coils in the field (it is a fundamental operation of such coil to sense voltage induced onto itself through magnetic fields); creates a digital voltage reading; and maps that voltage reading to a metric positional measurement based on a characterized volume of voltages to millimeters from a fixed field emitter . . . the localization device 34 can use the position data of the elements 24 to deduce coordinates or positions associated with the markers 22 intra- procedurally during the second time interval. The distance, range, acceleration, and speed between one or more selected pairs of localization elements 24 (and corresponding markers 22) can then be determined and various algorithms can be used to analyze and compare the distance between selected elements 24 at given instants in time, to the distances between and orientation among corresponding markers 22 observed in the preoperative Appeal 2020-005144 Application 15/102,566 11 images. Hence, one position of one 24 is determined relative to another element 24 (fig. 4), and teaches “generate the respiratory signal based on the position of the third tracker relative to the first tracker; and wherein the position of the third tracker relative to the first tracker changes during the plurality of respiratory states of the subject” (fig. 6, 0084). Ans. 15–16 (emphasis omitted). Thus, the Examiner finds Holsing discloses the use of multiple localization elements 24 to provide relative positional information including distance, range, acceleration, and speed. In reply, Appellant quotes a substantial portion of claim 5 and concludes Shmarak fails to disclose the claimed subject matter. Reply Br. 12. Additionally, Appellant argues, “the Examiner does not assert the claimed feature ‘changes during a plurality of respiratory states of the subject,’ as recited in Appellant’s claim 5. In addition, as per Appellant, Holsing fails to teach or suggest ‘changes during a plurality of respiratory states of the subject,’ as recited in Appellant’s claim 5.” Id. (emphasis omitted). Appellant also argues “Holsing does not teach or suggest ‘changes during the plurality of respiratory states of the subject,’ as recited in Appellant’s claim 5.” Id. at 13 (emphasis omitted). We agree with the Examiner that, based on the teachings of Shmarak alone, a person of ordinary skill in the art would have found it obvious to implement a third tracker attached to the subject and configured to perform as recited in claim 5 “to provide more accurate positional data.” Paragraph 36 of Shmarak states, “MPS 102 may include additional MPS sensors to be used as further references, similar to MPS sensor 1203 or MPS sensor 1204, thereby further assisting with coordinate system normalization.” Shmarak also states, Appeal 2020-005144 Application 15/102,566 12 [p]rocessor 108 obtains phase information by processing data provided by MPS 102 via MPS sensor 1201, without the need for any external monitoring device (such as an ECG device). Other sensors may be used independently or in addition in order to generate phase information (e.g., MPS sensor 1203 in conjunction with MPS sensor 1201). Shmarak ¶ 37 (bolding omitted, italicization added). Thus, the Examiner’s reasoning for modifying Shmarak’s system to include an additional sensor(s), as recited in claim 5, is underpinned by Shmarak’s own disclosure. As for the requirement in claim 5 that “the position of the third tracker relative to the first tracker changes during the plurality of respiratory states of the subject,” Shmarak discloses that “processor 108 obtains phase information by processing data provided by MPS 102 via MPS sensor 1201.” Shmarak ¶ 37. Shmarak also teaches that the phase information may relate to the respiratory rate and stages of the lung within a respiratory cycle. Id. Appellant does not apprise us of any error in the Examiner’s findings of fact regarding Shmarak or in the Examiner’s reasoning. Accordingly, we sustain the Examiner’s rejection of claim 5 as unpatentable over Shmarak. We also sustain the Examiner’s rejection of claim 5 as unpatentable over Shmarak and Holsing. Appellant’s contentions that Holsing does not relate to measuring a magnetic field and mentions only one tracker 20 do not address the Examiner’s use of Holsing’s teachings. The Examiner relies on localization elements 24 of Holsing, not patient tracking device (PTD) 20 as a whole, as a disclosure of the use of multiple sensors. See Ans. 16. This finding is supported by paragraph 36 of Holsing, cited by the Examiner, which states, “the localization elements are coupled to the PTD proximate the location of the markers, the distance between a selected pair of elements can be used to determine an intra-procedural distance between the pair of Appeal 2020-005144 Application 15/102,566 13 corresponding markers to which the localization elements are coupled.” See also Holsing ¶ 76. The Examiner states that the rejection of claim 5 relies on “Holsing . . . to provide additional reference as to the obviousness of additional electromagnetic sensors can be added to provide more position tracking.” Ans. 17. The disclosure in paragraphs 36 and 76 support the Examiner’s finding of fact regarding Holsing, and Appellant does not contest the Examiner’s reasoning, set forth on page 7 of the Final Office Action, for incorporating additional sensors in Shmarak’s system. Appellant’s contentions that there are differences in Holsing’s system (see Reply Br. 12–13) do not identify error in the Examiner’s use of Holsing’s teachings. Claim 6 Claim 6 depends from claim 5 and adds a fourth tracker functioning the same way as the third tracker recited in claim 5. See Appeal Br. 24–25. (Claims App.). The Examiner relies on the same findings of fact and reasoning to reject claim 6 over Shmarak alone, and, alternatively, over Shmarak and Holsing, as discussed above regarding claim 5. See Final Act. 6–9. Appellant makes substantially similar arguments in support of the patentability of claim 6. See Appeal Br. 16–19; Reply Br. 11–15. As discussed above, the Examiner’s findings of fact regarding Shmarak are supported by a preponderance of the evidence. Appellant does not contest the Examiner’s reasoning in rejecting claim 6 as unpatentable over Shmarak alone. See Appeal Br. 17. Accordingly, we sustain the rejection of claim 6 based on Shmarak. Similarly, Appellant’s contention that “Holsing does not disclose the features recited in Appellant’s claim 6, because ‘electromagnetic coil sensor’ Appeal 2020-005144 Application 15/102,566 14 in Holsing does not relate to ‘to measure[ing] the magnetic field’ or [being] ‘based on the magnetic field measured by the third receiver’ [as] are recited in Appellant’s claim 6” (Appeal Br. 18 (emphasis omitted)) is unavailing because the Examiner relies on Holsing to teach the use of additional sensors to provide more accurate positional data. Final Act. 9. Appellant does not contest this point. Appeal Br. 18. Accordingly, we sustain the rejection of claim 6 as unpatentable over Shmarak and Holsing. Claim 7 Claim 7 depends from claim 1 and recites, “a fiducial marker viewable in an imaging data set obtained by an imaging device that is configured to scan the subject, wherein the imaging data set is associated with a first respiratory state of the subject of the plurality of respiratory states of the subject.” Appeal Br. 25 (Claims App.). The Examiner finds Holsing discloses such a fiducial marker in paragraph 76 and Figures 2 and 4. Final Act. 9. The Examiner reasons “[i]t would have been prima facie obvious to one of ordinary skills in the art at the time of invention to modify the method/device of Shmarak . . . alone or to include the features of Holsing . . . in order to provide more accurate positional data and to provide positional data comparison in imaging data.” Id. Appellant contends that it is unclear what elements in Holsing the Examiner is asserting correspond to the features recited in Appellant’s claim 7. Appeal Br. 18. Appellant also quotes a portion of paragraph 76 of Holsing and then asserts Holsing fails to disclose the limitations recited in claim 7, and “neither Shmarak nor Holsing, alone or in combination, teaches or suggests each and every feature as recited in claim 7.” Id. at 18–19 (emphasis omitted). Appeal 2020-005144 Application 15/102,566 15 Such a conclusory assertion with no analysis to the underlying challenge is insufficient to apprise us of Examiner error. In the Answer, the Examiner finds Shmarak discloses using parameters related to medical imaging obtained by means of fiducial markers. Ans. 19 (citing Shmarak ¶ 33). The Examiner reiterates that Shmarak associates the positional data of its sensors with respiratory states of a patient. Id. (citing Shmarak ¶¶ 35, 59). From this, the Examiner concludes Shmarak alone, or in combination with Holsing “teaches or suggests each and every feature as recited in claim 7.” Id. We address the rejection based on Shmarak alone, and the rejection based on Shmarak in combination with Holsing, as follows. Shmarak In the Reply Brief, Appellant contends, [a]lthough the Examiner asserts that Shmarak teaches the relationship of these points to their corresponding identified image, the relationship, which the Examiner is asserting, is a relationship between the fiducial points to their corresponding states of the subject. Further, Shmarak, at [0035], mentions “image detector 116” and, at [0059], mentions “respiratory trajectory,” Shmarak does not teach or suggest any relationship between “image detector” and “respiratory trajectory.” Therefore, Shmarak does not teach or suggest “the imaging data set is associated with a first respiratory state . . . ” as recited in Appellant’s claim 7. Reply Br. 17 (emphasis omitted). Appellant’s argument does not apprise us of Examiner error because paragraph 33 of Shmarak supports the Examiner’s finding that Shmarak discloses the use of fiducial points related to imaging device 104 and the relationship of these points to their corresponding identified image. Imaging Appeal 2020-005144 Application 15/102,566 16 device 104 acquires a two-dimensional image via image detector 116, and image detector 116 detects a plurality of two-dimensional images, each representing a view of the inspected organ. Shmarak ¶ 38. These data are stored in database 106 and are time-tagged. Id. ¶¶ 39–41. Data obtained via each one of the plurality of MPS sensors 1201, 1202, 1203, and, 1204 are also time-tagged. Id. ¶ 41. Processor 108 of Shmarak associates between captured two-dimensional images, position information relating to the respective images, and phase information relating to the respective images. Id. ¶ 43. Thus, the data from the fiducial points are associated with the data from MPS sensors 1201, 1202, 1203, and, 1204. As the data from MPS sensors 120X is associated with the patient’s respiratory states (see Shmarak ¶¶ 35–37, 59), the data from the fiducial points are associated with the patient’s respiratory states. We sustain the Examiner’s rejection of claim 7 over Shmarak alone. Shmarak and Holsing Figure 2 of Holsing depicts localization elements 24 and markers 22 disposed on apparatus 10. Paragraph 76 of Holsing describes markers 22 as being made of material that can be viewed on an image, such as an X-ray or computer tomography (CT). Further describing markers 22, Holsing states, “[i]n one embodiment the marker or fiducials and the localization element can be the same device.” Holsing ¶ 60 (emphasis added). Holsing explains that localization elements 24 can be used to determine the location of markers 22 at given instants in time. Id. Figure 6 of Holsing characterizes movement of localization elements 224 during a change in lung volume (the respiratory states of a patient). Referring to Figure 6 and paragraph 84 of Holsing, Appellant states, “Holsing does not teach or suggest a relationship between an imaging data Appeal 2020-005144 Application 15/102,566 17 set and the respiratory cycle.” Reply Br. 16 (emphasis omitted). Appellant’s argument is contradicted by Figure 6 and paragraphs 76 and 84 of Holsing, which indicate that Holsing uses localization elements and fiduciary markers to track the movement of a patient’s lung. Accordingly, we sustain the Examiner’s rejection of claim 7 as unpatentable over Shmarak and Holsing. Claim 8 Appellant makes similar arguments in support of the patentability of claim 8 as those discussed above regarding claim 5. See Appeal Br. 15, 20– 21. For the same reasons, these arguments do not apprise us of Examiner error. Claim 9 Claim 9 depends from claim 7 and recites, “the fiducial marker and at least one of the first and second trackers are integrated into a housing.” Appeal Br. 25 (Claims App.). The Examiner finds “Holsing . . . teaches further comprising: wherein the fiducial marker [22] and at least one of the first and second trackers [24] are integrated into a housing.” Final Act. 10 (citing Holsing Fig. 2). Referring to paragraph 76 and Figure 2 of Holsing, Appellant contends Holsing “only mentions localization elements 24 and markers 22, but Holsing does not mention ‘fiducial marker’ or ‘at least one of the first and second trackers’ that are recited in Appellant’s claim 9.”6 Appeal Br. 22 6 For the rejection of claim 9, Appellant contests only the Examiner’s finding of fact regarding Holsing, and does not assert that there is any deficiency in the Examiner’s reasoning regarding modifying the system disclosed by Shmarak. See Appeal Br. 21–22. Appeal 2020-005144 Application 15/102,566 18 (emphasis omitted). In response, the Examiner finds Holsing teaches fiducial markers 22 in paragraphs 60, 76. We agree with the Examiner that markers 22 in Holsing qualify as fiducial markers, and, therefore, paragraphs 60 and 76 support, by a preponderance of the evidence, the Examiner’s findings of fact in the rejection of claim 9. CONCLUSION The Examiner’s decision to reject claims 1–3 and 5–9 is affirmed. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1 102(a)(1) Shmarak7 1 103 Shmarak 1 2–3, 5–9 103 Shmarak, Holsing 2, 3, 5–9 Overall Outcome 1–3, 5–9 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 7 We do not reach this rejection.